Citation Nr: 0002006
Decision Date: 01/27/00 Archive Date: 02/02/00
DOCKET NO. 94-16 767 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to service connection for the residuals of a left
ankle injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and appellant's mother
ATTORNEY FOR THE BOARD
M. A. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1992 to
May 1993. This appeal arises from an August 1993 rating
decision of the Newark, New Jersey, regional office (RO)
which denied service connection for the residuals of a left
ankle injury. This matter was Remanded by the Board of
Veterans' Appeals (Board) in May 1996 and August 1997 for the
purpose of obtaining additional medical evidence and
affording due process to the veteran, and it has been
returned to the Board for appellate review.
FINDINGS OF FACT
1. There is evidence that the veteran was diagnosed as
having sprained left ankle in service.
2. Medical evidence confirming a diagnosis of a current
disability of the left ankle has not been presented.
3. The veteran's claim for service connection for the
residuals of a left ankle injury is not plausible.
CONCLUSION OF LAW
The claim of entitlement to service connection for the
residuals of a left ankle injury is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran's enlistment examination indicated that her feet
and lower extremities were normal. She was noted, however,
to have mild, asymptomatic pes planus. In January 1993, the
veteran twisted her left ankle when she slid down a rope
during basic training and landed the wrong way. The ankle
appeared normal. She had range of motion with pain. X-rays
showed no abnormalities. The veteran was seen one week later
due to complaints of left ankle pain. There was minimal
swelling. There was no discoloration. Range of motion was
intact. The assessment was inversion injury.
In February 1993, the veteran was evaluated for complaints of
chronic left ankle pain. She said she had been using
crutches whenever the pain increased. Manual muscle testing
was five out of five. There was no evidence of swelling or
ecchymosis. Calcaneal inversion and eversion was within
normal limits. X-rays demonstrated soft tissue swelling
about the ankle joint. There was no evidence of fracture or
dislocation. The assessment was mild ankle sprain. The
veteran was placed on a temporary physical profile.
A follow up examination was conducted by the orthopedic
clinic in April 1993. The veteran stated she continued to
suffer from pain along the left lateral malleolus. There was
no evidence of edema or erythema. The veteran had a full
range of motion without grinding. No pathology could be
identified. The diagnosis was "pending".
On a Report of Medical Examination pending service discharge,
the veteran's feet and lower extremities were found to be
normal. Her history of chronic left ankle pain due to a
sprain was noted. She was issued a Chapter 11 discharge as a
result of her failure to pass her physical training test.
In May 1993, the veteran filed a claim of service connection
for a left ankle disorder. She stated she incurred a mild
left ankle sprain in service, and that she had been suffering
from left ankle pain and swelling since that time. She made
no reference to post-service medical treatment.
The veteran was afforded a VA orthopedic examination in June
1993. She said she sprained her left ankle during basic
training. She stated the pain had never fully subsided. She
maintained her left ankle problems were the cause of her
inability to pass her physical training test. The veteran's
left ankle was cool without swelling or redness. She had
full range of motion with 30 degrees plantar flexion, 30
degrees dorsiflexion, 15 degrees eversion, and 30 degrees
inversion. There was no tenderness about either malleoli.
The heel was not tender. X-rays of the left ankle were
within normal limits. The assessment was normal examination
of the left ankle.
By a rating action dated in August 1993, service connection
for the residuals of a left ankle injury was denied. The RO
held service connection could not be established because
there was no evidence that the veteran currently suffered
from a disability of the left ankle.
The veteran filed a substantive appeal in January 1994.
Therein, she asserted that her complaints of chronic pain and
swelling had not been adequately considered. She said she
was no longer able to engage in physical activities. She
indicated her ability to engage in social and recreational
activities had also been adversely affected by her left ankle
problems. She furnished a copy of an undated letter she had
sent to her commanding officer. The letter concerned the
veteran disagreeing with her Chapter 11 discharge. She
indicated that she had not been given an adequate amount of
time to recover from her left ankle injury.
In further support of her claim, the veteran submitted
letters from her mother and [redacted]. Mr. [redacted] reported
that the veteran had been working for him since May 1993. He
said he had noticed that she had difficulty standing for
prolonged periods of time, and that he often noticed her
standing on her right leg in order to relieve her painful
left ankle. On inquiring about this unusual behavior, the
veteran showed him her ankle. Mr. [redacted] stated the
veteran's left ankle appeared to be swollen at that time.
Similarly, the veteran's mother indicated that the veteran
had been suffering from left ankle problems since her service
discharge. She said the veteran was in peak physical
condition prior to her enlistment.
The veteran was afforded a personal hearing before the RO in
February 1994. She discussed the circumstances surrounding
her inservice left ankle injury. She said she was diagnosed
as having a sprained left ankle, placed on crutches, and
given a temporary physical profile. She maintained that she
continued to experience swelling and pain of the left ankle
throughout the remainder of her military service. Despite
her continued complaints of left ankle pain, the veteran
testified she received minimal therapy and/or treatment. She
stated, however, that she was told that she had torn three
ligaments in her left ankle. She blamed her inability to
pass her physical test and eventual Chapter 11 discharge on
her chronic left ankle problems.
The veteran testified she still suffered from significant
swelling and pain of the left ankle. She denied missing any
work due to her ankle condition. She asserted her June 1993
VA examination had been superficial and inadequate for the
purpose of determining whether she suffered from a left ankle
disorder. The veteran testified that she had not sought any
professional post-service medical treatment. Instead, she
said she treated her ankle problem herself by elevating it in
the evening and wrapping it with an Ace bandage. Her mother
added that the veteran had been unable to seek professional
medical care because of financial reasons. She stated she
had noticed a profound difference in the veteran's physical
capabilities since her return from military service.
A letter from the veteran's former Taekwon-do instructor,
submitted at the hearing, indicated that the veteran had been
his student from October 1991 to November 1992. He noted the
veteran was no longer able to perform various Taekwon-do
techniques due to complaints of left ankle pain. He said he
had been told by the veteran that she injured her left ankle
in service.
In March 1994, the hearing officer denied service connection
for the residuals of a left ankle injury. The hearing
officer stated there remained no credible medical evidence
that the veteran currently suffered from the residuals of a
left ankle injury. He found the evidence of record showed
that the veteran had injured her left ankle in service, but
that the condition had resolved itself and was not seen on VA
examination. A supplemental statement of the case was
furnished to the veteran that same month.
The veteran was afforded a VA orthopedic examination in May
1994. The findings of said examination were confined to her
complaints of a left knee disorder. No references were made
to her ankle.
The matter was Remanded by the Board in May 1996. The RO was
requested to provide the veteran another VA orthopedic
examination to determine the presence of any left ankle
disorder. In doing so, the examiner was asked to state
whether any ligamentous damage to the left ankle was
etiologically related to the veteran's military service.
A VA orthopedic examination was scheduled in October 1996.
The veteran failed to report for this examination. She also
appears to have failed to report for an orthopedic
examination scheduled in November 1996.
The matter was Remanded again by the Board in August 1997.
The Board observed that the claims folder did not contain
copies of the letters informing the veteran that she was
scheduled for examinations on the dates that she did not keep
them. As such, the Board requested that the veteran be
scheduled for another VA orthopedic examination, and that, in
doing so, she be informed in writing of the time and location
of the examination. The Board indicated that a copy of the
notification letter should be associated with the claims
folder.
In a letter dated in November 1997, the RO asked the veteran
to provide the names of all VA and non-VA health care
providers who had treated her for her left ankle disorder
since February 1994. The veteran did not respond to this
inquiry.
The veteran was afforded a VA orthopedic examination in
October 1998. She said she fell during her military service,
and that she tore a ligament in her left ankle. She asserted
her left ankle was never given a proper amount of time to
heal. She stated she currently experienced chronic left
ankle pain with intermittent swelling. She denied using
crutches. However, the veteran reported using a Velcro ankle
support whenever she experienced an exacerbation of her
symptoms. She described having a "good day" on the date of
the examination with respect to her ankle.
A physical examination revealed a full and painless range of
motion of the left ankle. There was no increased heat,
swelling, or effusion. There was no discomfort on stressing
the ankle or the subtalar joint. There was no evidence of
any weakness or ligamentous tear. There was no pain to
palpation of the ligaments, which would indicate whether a
ligamentous injury was present. The motion of the ankle
joint did not appear to indicate that a ligamentous
abnormality existed. X-rays showed no evidence of bone
pathology. The soft tissues were also normal. The diagnosis
was unremarkable left ankle. The examiner stated he had been
unable to reproduce the veteran's ankle injury and there was
no evidence of ankle injury on examination.
Service connection for the residuals of a left ankle injury
was denied in May 1999. In order to establish a well-
grounded claim of service connection, the RO stated it was
necessary to provide evidence of a permanent residual or
chronic disability. The RO determined that the veteran's
most recent VA examination had shown that her left ankle was
normal. A supplemental statement of the case was mailed to
the veteran in May 1999.
II. Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303(a) (1999). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1999).
A person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.
The Secretary shall assist such a claimant in developing the
facts pertinent to the claim.
38 U.S.C.A. § 5107(a). Thus, the threshold question to be
addressed in this case is whether the veteran has presented
evidence of a well-grounded claim. If she has not presented
a well-grounded claim, her appeal must fail, because the
Board has no jurisdiction to adjudicate the claim. Boeck v.
Brown, 6 Vet. App. 14, 17 (1993).
In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert.
denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the
Department of Veterans Affairs (VA) has a duty to assist only
those claimants who have established well grounded (i.e.,
plausible) claims. More recently, the U.S. Court of Appeals
for Veterans Claims (Court) issued a decision holding that VA
cannot assist a claimant in developing a claim which is not
well grounded. Morton v. West, 12 Vet. App. 477 (July 14,
1999), req. for en banc consideration by a judge denied, No.
96-1517 (U.S. Vet. App. July 28, 1999) (per curiam).
Because a well-grounded claim is neither defined by the
statute nor the legislative history, it must be given a
commonsense construction. A well-grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
38 U.S.C.A. § 5107(a). Id. at 81. However, to be well
grounded, a claim must be accompanied by evidence that
suggests more than a purely speculative basis for granting
entitlement to the requested benefits. Dixon v. Derwinski, 3
Vet. App. 261, 262-263 (1992). The Court has held that
evidentiary assertions accompanying a claim for VA benefits
must be accepted as true for purposes of determining whether
the claim is well grounded. Exceptions to this rule occur
when the evidentiary assertion is inherently incredible or
when the fact asserted is beyond the competence of the person
making the assertion. Espiritu v. Derwinski,
2 Vet. App. 492 (1992). Where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is plausible or
possible is required. Murphy, 1 Vet. App. at 81. A claimant
would not meet this burden merely by presenting lay
testimony, because lay persons are not competent to offer
medical opinions. Espiritu, 2 Vet. App. at 495.
A claim for service connection requires three elements to be
well grounded. There must be competent evidence of a current
disability (a medical diagnosis); incurrence or aggravation
of a disease or injury in service (lay or medical evidence);
and a nexus between the in-service injury or disease and the
current disability (medical evidence). The third element may
be established by the use of statutory presumptions. Caluza
v. Brown, 7 Vet. App. 498, 506 (1995).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303(b) are applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in
service, or during an applicable presumptive period, and
still has such condition. Such evidence must be medical
unless it relates to a condition as to which under case law
of the Court, lay observation is competent.
If chronicity is not applicable, a claim may still be well
grounded on the basis of 38 C.F.R. §3.303(b) if the condition
is noted during service or during an applicable
presumptive period, and if competent evidence, either medical
or lay, depending on the circumstances, relates the present
condition to that symptomatology.
Savage v. Gober, 10 Vet. App. 488 (1997).
In the instant case, what is initially lacking under
Caluza/Savage tests is medical evidence that the veteran
currently suffers from a sprained left ankle or residuals of
such injury. As was noted above, the veteran has submitted
no medical evidence that she currently has a disability of
the left ankle. Her opinion, standing alone, is insufficient
to establish the presence of current chronic disability
related to her sprained left ankle in service. There is no
evidence that she is a medical professional. Therefore, she
lacks the expertise to render a medical opinion regarding the
cause of the alleged left ankle pain and swelling. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). With respect
to the hearing testimony and the lay statements submitted in
support of the claim, neither the veteran nor the other
individuals are shown to have the medical expertise necessary
to diagnose a current ankle disability. While the Board
considers the hearing testimony credible insofar as it
described the beliefs in the merits of the claim and current
complaints, the testimony is not competent to diagnose a
current ankle disorder.
The Court has held, in Brammer v. Derwinski, 3 Vet. App. 223
(1992), that in the absence of proof of a present disability,
there can be no valid claim for service connection. An
appellant's belief that he or she is entitled to some sort of
benefit simply because he or she had a disease, injury or
exposure while on active service is mistaken, as Congress
specifically limited entitlement to service connection to
cases where there is resulting disability. Accordingly, the
veteran's claim of service connection for residuals of a left
ankle injury must be denied. Should the veteran obtain
medical evidence that she has a disability of the left ankle,
such evidence may be a basis for reopening her claim.
ORDER
Entitlement to service connection for the residuals of a left
ankle injury is denied.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals